Online sidebar: Muslim Lawsuits Loom Large in the Religion Category

By Robert J. Grossman Mar 1, 2011
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In fiscal 2010, the U.S. Equal Employment Opportunity Commission (EEOC) received nearly 100,000 new private-sector charges of employment discrimination—a record high and a jump of 7 percent over 2009 numbers. Of the 3,790 religious discrimination charges, Muslims accounted for 797. Muslims make up only 0.8 percent of the population, yet they accounted for 21 percent of the religious discrimination charges. Does the number accurately reflect the degree of bias against Muslims in the workplace?

On one hand, there are advocacy groups and greater awareness that encourage people to come forward. On the other hand, many Muslims come from cultures where it is not acceptable to stand up to authority. And, given the job market, people who need work are likely to avoid controversy. In balance, it seems fair to conclude that there’s more discrimination than gets reported. In a study by the Tanenbaum Center for Interreligious Understanding, only 23 percent who said they experienced discrimination ever reported it, says Georgette Bennett, Tanenbaum’s president and founder.

Oumar Thioubou, a cleaner at a private college in upstate New York, knows that as a Muslim he has the right to have his schedule changed so he can attend Friday midday prayers. But he’s not asking, choosing instead to take allotted personal time. His approach is guided in part by his cultural heritage. “You don’t come to someone’s house and change the house,” he says. “You follow the rules of your employer.” Like many Muslims of African and Arab descent, however, Thioubou, who graduated from college in Algeria, says he has been targeted for discrimination. “My issue is race,” he says. “Recently, a guy at work called me an African monkey.”

And when people do speak out, it’s often too late for formal action. “The other day, a police officer came in and said that more than two years ago he discovered vulgar notes in his locker,” says Christina Abraham, civil rights director at the Council on American-Islamic Relations’ (CAIR) Chicago office. The time limit for filing a complaint had expired.

Discrimination Cases: By the Numbers

Of the 797 charges of religious discrimination against Muslims in fiscal 2010, 459 of the complainants also alleged discrimination based on national origin. Thirty-two percent of the total cases were filed by workers claiming discrimination because they were Arab, Afghani or Middle Eastern. Under Title VII of the Civil Rights Act of 1964, the same facts may be used to state a claim linking religious discrimination with other types of discrimination. For example, co-workers might target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race or color.

A total of 389 Muslim complainants alleged wrongful discharge; 324, harassment; 88, accommodation; and 243, terms and conditions. Since 2001, the EEOC has reported 6,039 charges alleging discrimination against Muslim workers.

In 2010, the CAIR reported about282 work-related cases. The number of cases has remained about the same the past few years, Abraham says. “There is not an upward trend. In places in the country where the Muslim community is very small or they’re the only minority, we see more egregious types of discrimination. But I don’t think that discrimination happens to every Muslim out there. More often, when issues come up, they’re subtle.”

Harassment

Muslims most susceptible to discrimination or harassment tend to be first-generation immigrants working in jobs where they are least empowered, such as cab drivers and food-cart operators, says Adil Khan, an attorney with Greenberg Traurig LLP in Los Angeles.

Most cases that make it to the CAIR never get to trial. The council’s lawyers attempt mediation or work with the employee to pursue mediation through the EEOC. One 2009 trial involved Abraham Yasin, a Cook County, Ill., correctional officer who claimed he was harassed by colleagues because of his Palestinian ancestry and was awarded $200,000 in damages. Yasin said he was constantly targeted by fellow officers with slurs such as “camel jockey” and “bin Laden” on the radio and via graffiti on his locker. He said he overheard jail officers talk about hog-tying Muslims. When he complained, supervisors failed to act appropriately.

“Yasin embodies the average Muslim American,” Christina Abraham says. “He looks like a regular guy; the only way you would know he is Muslim would be from his name. If Abraham Yasin had never complained about his treatment, management would not have been liable. The fact that it is reported or that they try to cover it up is what creates employer liability.”

Accommodation

Accommodation issues tend to be more prevalent in retail and service industries because they require Muslims to interact directly with the public. Some employers say that religious garb or appearance may be off-putting to customers. “We get more complaints about women who are not accommodated because of the head scarf than men and facial hair,” Abraham says.

Accommodation is more of an issue with immigrant, blue-collar workers, says Taneeza Islam, a civil rights director for CAIR in Minnesota. White-collar Muslims are “flexible and not interested in making accommodation a big issue,” she says. But Somali factory workers in St. Cloud, Minn., have “a different mentality. The job is secondary to their being able to practice their religion.”

Most cases, Islam says, involve prayer in the workplace, fasting at work, scheduling around religious holidays and wearing of the hijab, the head covering traditionally worn by Muslim women. Since 2008, the council has had only one religious harassment case. The other cases deal with blue-collar reasonable accommodations. “The Somali refugee population doesn’t know English very well and doesn’t know how or what to communicate to the employer. And Somalis are outwardly very Muslim,” Islam says. For example, most males will have beards and wear the kufi, a round cap. Women wear the hijab or burqa. A burqa is usually understood to be a woman’s loose body covering, plus head covering and face veil.

The Minnesota CAIR serves a Muslim population that includes about 100,000 Somali immigrants. Last year, its lawyers intervened in a case involving an Electrolux plant in St. Cloud where 300 employees on the factory floor were denied the right to break their daily fasts during Ramadan. An English-speaking Somali union steward was unsuccessful in his efforts to negotiate this accommodation with Electrolux’s managers. The council joined employees in filing a complaint with the EEOC. Ultimately, the case was settled with Electrolux officials agreeing to the accommodation in time for Ramadan. “About 80 percent of the companies that we contact are amenable,” TaneezaIslam says. “Electrolux could have done the same; their refusal was unusual. Sometimes, the employer thinks this is a refugee population so they won’t know how to get help.”

Somali refugees came here from a country where virtually everyone is Muslim, notes U.S. Rep. Keith Ellison, D-Minn., the first Muslim elected to Congress. “They’re not used to living in a multicultural society.”

Ellison notes that some discrimination or accommodation claims are based on a lack of understanding of the religion by Muslims themselves. “For example, there’s been publicity about a Muslim working at a supermarket checkout counter not wanting to check out a package of bacon for religious reasons,” he says. “You’re not supposed to eat the bacon; there’s nothing in the Quran about touching the package.”

Blockbuster Cases

Federal officials’ strategy of selecting cases with significant impact, requiring training and education, and widely publicizing cash settlement results seems to help keep the number of cases down.

In Phoenix, one case involved Alamo officials who denied a Somali customer service representative permission to wear a hijab during Ramadan. When she offered to wear an Alamo-designed scarf, the company still prevented her from wearing it in the presence of customers. “She was trying to look for a compromise solution, but her supervisor refused,” explains P. David Lopez, general counsel of the EEOC in Washington, D.C. “The jury found the company’s position condescending and derisive. There was recognition that religious accommodation protects everyone and that the scarf was not a real burden to the employer.” The worker was awarded $347,000, including $150,000 for punitive damages in EEOC v Alamo Rent-A-Car LLC; ANC Rental Corp.

In a second case, the EEOC sued NCL America on behalf of seven Yemini crew members singled out by a passenger aboard the ship Pride of Aloha. The passenger complained that he overheard one of them make an anti-American comment. The seven were fired and forced off the ship in the middle of the night. NCL America settled the case and agreed to pay the crew members $485,000, to revise its policies, to hire an equal employment opportunity consultant, and to provide training to managers and employees on the company’s equal employment opportunity policy and complaint procedure.

A third case involved financial management giant Merrill Lynch. A Muslim analyst of Iranian descent, Majid Borumand, was subjected to derogatory comments and ultimately discharged. The EEOC sued for disparate treatment and failure to promote. Merrill Lynch settled for $1.55 million and agreed to provide training to employees regarding discrimination based on religion and national origin.

“Most employers do not set out to discriminate,” Lopez says. “They try to do the right thing. When they go astray, it’s often because they don’t have a meaningful HR function monitoring workplace discrimination, or the HR component does not have real stature and autonomy in the organization.”

The author, a contributing editor of HR Magazine, is a lawyer and a professor of management studies at Marist College in Poughkeepsie, N.Y.

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